1 IN THE SUPREME COURT OF THE UNITED STATES 2 · They knew that there was a dilemma, a dilemma...

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IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - -X

SUSAN JINKS, :

Petitioner :

v. : No. 02-258

RICHLAND COUNTY, SOUTH :

CAROLINA. :

- - - - - - - - - - - - - - - -X

Washington, D.C.

Wednesday, March 5, 2003

The above-entitled matter came on for oral

argument before the Supreme Court of the United States at

11:27 a.m.

APPEARANCES:

ROBERT S. PECK, ESQ., Washington, D.C.; on behalf of the

Petitioner.

JEFFREY A. LAMKEN, ESQ., Assistant to the Solicitor

General, Department of Justice, Washington, D.C.; on

behalf of the United States, as Intervenor.

ANDREW F. LINDEMANN, ESQ., Columbia, South Carolina; on

behalf of the Respondent.

1

Alderson Reporting Company 1111 14th St., NW 4th Floor Washington, DC 20005

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C O N T E N T S

ORAL ARGUMENT OF

ROBERT S. PECK, ESQ.

On behalf of the Petitioner

JEFFREY A. LAMKEN, ESQ.

On behalf of the United States,

as Intervenor

ANDREW F. LINDEMANN, ESQ.

On behalf of the Respondent

PAGE

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P R O C E E D I N G S

(11:27 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument

next in No. 02-258, Susan Jinks v. Richland County.

Mr. Peck.

ORAL ARGUMENT OF ROBERT S. PECK

ON BEHALF OF THE PETITIONER

MR. PECK: Mr. Chief Justice, and may it please

the Court:

In enacting section 1367, Congress took up this

Court's invitation in Finley to manage the boundaries of

supplemental jurisdiction. It had two goals in doing so.

It sought to provide a Federal forum for plaintiffs that

so chose to use it, and for -- for reasons of respect for

the interests of comity and federalism, it provided a

mechanism by which those cases may be returned to State

court.

They knew that there was a dilemma, a dilemma

caused by the operation of statutes of limitations, and so

they sought to find and found a simple, practical,

workable solution that traveled down a well-trod path.

It's a path that was traveled down by the Soldier and

Sailors' Relief Act, a act that also tolls State statutes

of limitations even when exigent circumstances do not

exist. And in the case in 1993 holding that, Conroy, this

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Court found that it was applicable in that instance to a

defendant who was a town.

It also traveled down that road in section 108

of the Bankruptcy Act. This too provides that kind of 30-

day window after dismissal of the automatic stay or

lifting of the automatic stay for a plaintiff to file an

action which is otherwise purely a State matter in State

court.

This Court found in Stewart v. Kahn that there

is no federalism bar to congressional authority as long as

that authority exists someplace in the Constitution.

Throughout its history, pursuant to Article I, which has a

cognate provision duplicative of the authority it derives

also from Article III, Congress has used its jurisdiction-

setting authority as a traffic cop over the area of

concurrent State and Federal jurisdiction. It has done so

almost from the beginning in the Anti-Injunction Act, the

removal statute, and has always found this to be a

necessary incident of maintaining a dual-court system.

QUESTION: Well, the Anti-Injunction Act just

applies to Federal courts, doesn't it?

MR. PECK: The -- it gives Federal courts the

authority, though, to stay a State action when it

interferes with the jurisdiction of the Federal court.

QUESTION: It's an -- that -- that's an

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exception to the Anti-Injunction Act.

MR. PECK: That's an exception contained in the

Anti-Injunction Act, and another exception is when an act

of Congress so provides.

The choice of tolling did not attempt to give

longer life in State court than it would have enjoyed in

Federal court. It did not eliminate defenses that were

available in Federal court, have the matter remain there.

It did not change the State's policy on waiver of

municipal liability or alter its statute of limitations.

It simply said that the case, as it stood in Federal

court, is now available to be heard in State court. The

State is free to change both its waiver of immunity, its

statute of limitations, and Congress accepts those changes

regardless of the application of the supplemental

jurisdiction statute.

Once that jurisdiction attaches, once the

Federal court has authority to hear the State action, then

even after the Federal -- Federal claim has fallen away,

the court still has the jurisdiction to hear what

otherwise would have been a purely State claim.

This is unusual in a diversity case. When

complete diversity is broken, the jurisdiction ends. But

here no one, not the Supreme Court of South Carolina, not

the respondents, not the amici, questioned Congress'

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authority to say that this remains a Federal matter

because a Federal interest has attached because the matter

has now been heard.

QUESTION: I didn't understand it that way, I

thought South Carolina said, Federal court, you want to

take this and deal with this stale claim? That's all

right with us. It's one of the ironies of the case that

the State's position is the Federal court can have it if

you keep it. The only thing they can't do is give it back

to us when we don't want it because that would be

commandeering the use of our courts. South Carolina's

position is the Federal court can keep our State claim in

Federal court. Indeed, it must if it wants the claim to

remain alive.

MR. PECK:

this late date, rule 60(b) would enable a plaintiff like

Susan Jinks to seek to reopen that Federal case, to -- to

reconsider its judgment and allow this case to still live

if -- if the tolling provision is ineffective.

That -- that is correct, and even at

So here what we're saying is that there's a

continuing Federal interest in this matter. There's --

there's been a Federal attachment to what otherwise would

have been a purely State matter. In a removal situation,

for example, South Carolina could not refuse a remand and

we contend that that authority which is contained in the

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removal statute is the same kind of authority that

Congress is exercising here because what Congress has

effectively done is define the legal effect of the

appearance of this matter in Federal court and the Federal

disposition of it. And the State courts of South Carolina

or any other State is not equipped, it's not authorized to

refuse that definition because Congress is the supreme

sovereign of Federal law. So --

QUESTION: We -- we know what Congress has --

has -- has defined. Why is it important? I mean, what is

the -- how would you define the important interest to the

Federal courts in -- in our seeing the constitutional

issue your way?

MR. PECK: Well, first of all, Congress wanted

to provide this Federal forum.

authority to do that. But they also wanted to take in the

interest of comity which this Court has always referred to

as a vital consideration.

They clearly had the

QUESTION: The State says, we don't want this

kind of comity. Keep it.

MR. PECK: It's -- it's very nice for the State

to have that interest, but the federalist design of our

Constitution provides that impetus that Congress was

acting on.

QUESTION: No, but I -- I want to get down to

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specifically what's important to the Federal courts and to

Congress.

MR. PECK: Well --

QUESTION: Why would it hurt the Federal courts

if you lose this case? What's -- practically what's --

what's at stake?

MR. PECK: I -- I think there are -- there are

several things that might happen. Right now what we call

supplemental jurisdiction is a doctrine of discretion. It

would be turned into a doctrine of plaintiffs' rights,

that if the State courts are refusing to receive these

case -- cases, then the Federal courts will be obligated

to hear these State matters even if they were novel and

complex matters in which only the State courts have the

appropriate expertise to hear it.

cause some problems.

And I think that would

QUESTION: What difference does complexity make

if the State Federal court's position is we don't want to

clutter up Federal courts with a lot of State tort --

garden variety, simple State tort claims? We don't want

to be a fender bender court.

MR. PECK: And I think it is perfectly

legitimate in Congress' jurisdiction-setting authority for

them to make that determination. These are matters that

are --

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QUESTION: The -- the idea is that Federal

courts should be occupied with Federal cases and not with

State cases.

MR. PECK: And I -- I think that is an

appropriate -- appropriate reason for Congress to adopt

this kind of a statute to assure that that happens.

The other -- Justice Souter, the other possible

consequence is that plaintiffs, fearful that a Federal

court will not hear their matter, will not take it back if

the -- the State courts will not accept the matter, may be

left without a cause of action on their State claim, that

they will suddenly be shut out the door. And in order

to --

QUESTION: And how is that going to hurt the

Federal courts?

MR. PECK: That does not necessarily hurt the

Federal courts, but Congress certainly has a right to be

concerned for those litigants and try to --

QUESTION: Why -- why isn't the person to be

concerned for those litigants the State courts under whose

law the litigants want to sue?

MR. PECK: Because -- because, Justice Souter,

here the State courts have -- have -- Congress has

basically done one thing. They've -- they've looked at

the idea of comity that this Court had talked about in

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Guaranty Trust, in Ragan, and -- and what they said is

that comity is a reciprocal process. It's got to have a

two-way street.

And so what we're doing is we're not giving

longer life in Federal court to what's in State court. We

have the authority to assign to the State courts a matter

that is purely Federal in nature. Now we have a matter

that has a Federal interest because of the intervention of

its arrival in Federal court, and because of that, we have

enough authority also to say that this is a matter that

the State courts can't refuse. They can't suddenly say

that we do not recognize the authority here --

QUESTION: But comity is traditionally a matter

of consent rather than having one sovereign impress its --

its law on the other. I mean, it's consensual.

MR. PECK: It is consensual, but then again, the

-- the idea behind comity is tied up with our -- our

federalism and our idea that we have a dual court system.

That dual court system recognizes that there will be

conflicts. There will be some -- some difficulties

between the Federal and State systems. Those difficulties

is what Congress is trying to police.

It's a -- it's a function that they have

performed repeatedly, and the removal statute is a very

good example of that. And certainly Congress could insist

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-- could insist that the State courts receive back even a

matter that the Federal court erroneously dismissed rather

than remand it.

And here they're not asking the South Carolina

courts to do anything that they don't normally do. If a

-- a matter is --

QUESTION: Well, they're asking the South

Carolina courts to grant relief in a case that is outside

the statute of limitations. I take it they don't -- the

South Carolina courts don't normally do that.

MR. PECK: South Carolina courts, as -- as we

cited in the -- the Hilton Head and Moriarty decisions,

has said that they will sometimes waive the statute of

limitations in the interest of justice.

Another instance in which they waive that issue

is when venue has been misapplied. When -- when they

demand that venue be placed in one particular place, you

file in that wrong place, the statute of limitations

expires before that court acts on it, they say it has

jurisdiction to transfer it to the proper venue.

QUESTION: Well, would this case come out

differently in the State? Supposing Georgia, a

neighboring State, had no such waiver. Would this case

come out differently there?

MR. PECK: I don't think so, and the reason I

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don't think so is because when all that is left in the

Federal court is a matter that is otherwise a State-based

claim, that Federal court sits as just another court of

that jurisdiction, another court within that State's

system. And for that reason -- for that reason, it ought

to be treated, when Congress so authorizes -- and

Congress, exercising that Article III, that necessary and

proper powers that it had, utilizing the Supremacy Clause,

authorizes that this be treated essentially by tolling as

meeting the statute of limitations.

They have the right to define the meaning of

what the Federal law is here, and that is simply what

they've done. They've done it by adopting a tolling

provision that is not unlike other tolling provisions

throughout the law.

they've done something that they have the authority to do.

And here it's clear that they --

Tolling comports completely with the federalist

design of the Constitution, enables the court's

consideration of what court is best positioned to

adjudicate. That is decidedly a jurisdictional decision.

Here -- and it's -- and it -- it is doing that by allowing

the courts to control their own borders of what is

appropriate to them and what is not.

QUESTION: I thought the South Carolina Supreme

Court agreed that as far as the Federal courts are

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concerned, this is all fine. So it was necessary to spare

the Federal courts having to sit on a case that no longer

has a Federal element. That's fine. It serves a

legitimate Federal purpose.

But, says South Carolina, you can't -- it isn't

proper to tell us then -- they can dump it. That's fine.

They can't tell us that we have to pick it up.

MR. PECK: That is indeed what they've said.

But Stewart v. Kahn says otherwise.

QUESTION: That was a -- that was a Civil War

tolling of the statute of limitations.

MR. PECK: That is correct. It found that

within the war power, Congress had the authority to toll

the statute of limitations in a State action brought in

State court.

overlay that prevents the use of that war powers

authority.

Obviously then there is no Tenth Amendment

Here they have similar authority, both in

Article I, section 8, to establish the inferior courts, as

well as Article III where there's a cognate phrase, and

that authority has to be equivalent. They've used that

authority also with respect to bankruptcy, again deriving

from section 8.

And so here again there's no question that these

other tolling provisions have been properly used. No one

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has questioned their constitutionality in recent times,

and this simply adopts a longstanding congressional

approach to this issue. It's one that this Court has

previously approved.

If -- if the respondent has his way, enormous

mischief will result. You leave the courts with a

Hobbesian choice, a choice that they have been

uncomfortable with in which you've seen courts granting

motions for reconsideration, courts requiring waivers of a

statute of limitations, so having much the same effect --

and clearly when tolling does that, it is clearly

appropriate to the judicial power -- and in other

instances, simply holding onto a case they would otherwise

allow the State courts to do, again in the interest of the

federalist overlay in our Constitution.

QUESTION: Well -- well, isn't it -- if --

suppose you should not prevail here. Well, then you just

bring -- the plaintiff would bring two actions, bring --

bring a protective action in the State court within the

statute of limitations and then that would solve the

problem, wouldn't it?

MR. PECK: But that -- that's an unworkable

solution. Congress sought to avoid that. Congress wanted

to give a Federal forum capable of hearing all matters

that a plaintiff would expect a single court to hear. And

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by filing a protective action of that sort, first of all,

you could not stop the State court from continuing to

proceed, possibly eclipsing in speed the Federal court and

coming up with res judicata on their Federal claim, as

well as the fact that you may be signaling the Federal

court that on the State matter we have a preference to be

in State court when that really isn't the case.

I -- I would -- if there are no further

questions, I would like to reserve the rest of my time.

QUESTION: Very well, Mr. Peck.

Mr. Lamken, we'll hear from you.

ORAL ARGUMENT OF JEFFREY A. LAMKEN

ON BEHALF OF THE UNITED STATES, AS INTERVENOR

MR. LAMKEN: Mr. Chief Justice, and may it

please the Court:

The tolling provision at issue here is within

Congress' constitutional powers for two reasons.

First, it establishes the legal effect of a

distinctly Federal set of events: the filing, pendency,

and dismissal of an action in Federal court over a

defendant over whom the court can exercise jurisdiction.

Second, it serves legitimate Federal interests,

ensuring that if plaintiffs are held harmless for having

selected a Federal forum in the first instance and

ensuring that Federal courts are not required to exercise

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jurisdiction and decide cases that involve potentially

sensitive issues of State law that are more reliably and

more appropriately decided in the State court.

Because municipalities are not States or arms of

the States, sovereign immunity does not prevent them from

being hailed into Federal court and it doesn't prevent the

Federal courts from exercising jurisdiction over cases

against them, including supplemental State law claims.

Congress can establish the rules for when

Federal courts should hear such claims and the rules for

when they should not. Congress has corresponding

authority to establish reasonable rules about the legal

consequences of the pendency of the Federal action, of the

filing of the claim, its pendency, and the court's

decision to dismiss it under specified rules that Congress

itself has established.

The rule established here falls within the

tradition of Federal control over the effect of Federal

proceedings. It falls in the tradition of, for example,

legal effect of the filing of a bankruptcy petition which

stays all the actions that are against the debtor and

tolls the State limitations periods during the pendency of

the automatic stay.

Or the removal provision which takes cases out

of State courts, stays the proceedings in State courts,

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and thus prevents the State courts from proceeding in a

way such as by deeming the case constructively dismissed

that might have the effect of causing the statute of

limitations to continue to run.

And the effect of a Federal -- a judgment of a

Federal court case.

All these are matters that are controlled by

Federal law, and that Federal law is no less binding on

State courts adjudicating State causes of action,

including against municipalities, than they are on Federal

courts.

The rule in this case serves twin Federal

interests.

First, it holds plaintiffs harmless for having

selected a forum -- a State -- excuse me -- a Federal

rather than a State forum in the first instance. Absent

this sort of rule, plaintiffs would face the risk, if they

chose a Federal forum, of having the statute of

limitations run on their State law claims. If the Federal

court then chose to dismiss, those State law claims would

be barred. And plaintiffs would have an artificial

incentive to avoid Federal court, including for the

assertion of their Federal law claims.

It also serves the interests of Federal courts

in ensuring that they don't have to decide State law

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claims that are potentially sensitive, that under the

standards this Court articulated in Gibbs that Congress

has codified in section 1367(c) and it reflects sensible

notions of division between State and Federal authority

more appropriately belong in State court and can be more

reliably adjudicated there.

This Court's decision in Stewart v. Kahn

establishes that there is no constitutional impediment to

congressional preemption of State tolling rules if it

serves a legitimate Federal interest, the tolling

provision here, like the social -- excuse me -- like the

Soldiers' and Sailors' Relief Act, the bankruptcy

automatic stay tolling rule, following that tradition.

Finally, the tolling rule here intrudes only

modestly on State interests.

State claims in Federal court serves all of the statute of

limitations purposes as the claim -- as the timely filing

of those same claims in State court.

The timely filing of the

Accordingly, we ask that the judgment of the

State supreme court be reversed.

If there are no further questions.

QUESTION: Thank you, Mr. Lamken.

Mr. Lindemann, we'll hear from you.

ORAL ARGUMENT OF ANDREW F. LINDEMANN

ON BEHALF OF THE RESPONDENT

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MR. LINDEMANN: Mr. Chief Justice, and may it

please the Court:

By enacting section 1367(d), Congress has

intruded on principles of State sovereignty. This case

involves more than just the tolling of a State law statute

of limitations. It involves, in this particular instance

where a political subdivision is involved and South

Carolina law is involved, specifically the South Carolina

Tort Claims Act -- this case involves a -- a waiver of

State law sovereign immunity, State law governmental

immunity.

QUESTION: What about examples cited by the

representative of the Solicitor General of the Soldiers'

and Sailors' Civil Relief Act and other Federal laws that

have a similar effect on South Carolina and other States?

MR. LINDEMANN: Well, I would submit to the

Court that, first of all, the issue has never come up,

never been litigated in this Court, and as far as I'm

aware, has never been litigated in any court whether or

not the Soldiers' and Sailors' Act in any application is

-- is constitutional.

QUESTION: Okay. So you think, as far as you're

concerned, it would be the same problem and the same

result.

MR. LINDEMANN: No, I do not necessarily believe

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it will be the same result. I believe it would be a much

more difficult question for this Court than what was

facing the South Carolina Supreme Court and is presently

before this Court.

QUESTION: Why?

MR. LINDEMANN: Because you have different

Federal interests that are involved. And obviously, in

determining whether or not the -- a statute is proper

under the Necessary and Proper Clause and to do a Tenth

Amendment analysis, you have to look at -- you have to

weigh the various Federal and State interests that are

involved.

In this particular case, which I'll elaborate

more momentarily, you have very superficial, I would

submit, Federal interests involved compared to a very

substantial State interest of determining whether or not

the State and its political subdivisions are subject to

suit under State law.

QUESTION: But is it not -- is it not correct --

is it not correct that the intrusion on State sovereignty

-- forget the Federal side of the balance for a moment --

the intrusion on State sovereignty is precisely the same

under all these other statutes?

MR. LINDEMANN: I would disagree, Justice

Stevens.

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QUESTION: Why is the intrusion in the Soldiers'

and Sailors' Civil Relief Act any different than this one?

MR. LINDEMANN: The Soldiers' and Sailors' Act

-- it would be a very similar intrusion on the -- on the

State sovereignty.

QUESTION: And how about the bankruptcy statute?

MR. LINDEMANN: The bankruptcy -- the actual --

any -- any of these statutes that have been cited by the

petitioners and by the Government that actually provide

for a stay of a State court action I think are

substantially different because I would submit to the

Court that a stay of a State court action, whether it's

pursuant to the Bankruptcy Code, pursuant to the removal

statutes, any of -- Anti-Injunction Act, any of those does

not have the same effect upon State sovereignty because

it's not changing the actual liability of the defendant,

in this particular case, Richland --

QUESTION: Well, neither does this statute

change the liability. It just preserves the cause of

action.

MR. LINDEMANN: I --

QUESTION: Just like the Soldiers' and Sailors'

statute.

MR. LINDEMANN: I -- I would respectfully

disagree, Justice Stevens, because what has occurred in

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this particular case is Richland County was entitled to

State law sovereign immunity once 2 years passed from the

date of the loss. And at -- at the point that this

lawsuit was filed in State court --

QUESTION: Wouldn't it be entitled to sovereign

immunity if a sailor had -- had sued them too?

MR. LINDEMANN: Well, that's why I was trying to

distinguish the stay cases from the Soldiers' and Sailors'

Act. I think the Soldiers' and Sailors' Act issue is a

much closer question and there what you're weighing is

much more substantial Federal interests.

QUESTION: I'm -- I'm just looking at it from

the State's point of view in the point of my questions.

It did not seem to me that the State interest in it being

immune was any different in any of those situations.

MR. LINDEMANN: Well, I would -- I would submit

that there is no difference in the Soldiers' and Sailors'

context, but there would be a major difference in any of

the situations involving a stay.

QUESTION: Mr. Lindemann, I don't -- I don't see

what difference it makes that the statute of limitations

in this case was applied to -- to what you call State

sovereign immunity. That is, you -- you acknowledge that

this entity, Richmond -- Richland County, was -- was not

entitled to sovereign immunity as we know it under Federal

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law.

MR. LINDEMANN: That's correct, Your Honor.

QUESTION: But you're saying that the State

wished to confer upon Richland County a shorter statute of

limitations for suit against it than -- than this Federal

statute permits.

Why is that any -- any different from applying

the same statute against South Carolina's determination

that a private individual should not be suable after 2

years? What difference does it make whether -- whether

the person being affected by it is a private individual or

Richland County? So long as it's not the State of South

Carolina, Federal sovereign immunity law is not -- is not

at issue. What do we care?

MR. LINDEMANN:

case involving the Eleventh Amendment.

Well this, Your Honor, is not a

QUESTION: Exactly.

MR. LINDEMANN: This is not a case that is

involving Federal constitutional immunity.

QUESTION: Exactly.

MR. LINDEMANN: This is a case that was brought

-- a negligence case that was brought in State court

against a State governmental -- or a local governmental

entity in the State of South Carolina to which South

Carolina law should apply. And the reason why we contend

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that this violates the Tenth Amendment is it intrudes into

the areas of State sovereignty to determine, number one,

what South Carolina law provides; number two, how South

Carolina law determines whether or not their own

governmental entities are subject to suit.

QUESTION: But, Mr. Lindemann, one of the

curiosities about this case is if the Federal court, once

the Federal claim dropped out, decided that it would clean

-- clean up the operation, it would keep it in Federal

court, there would be a Federal court adjudicating South

Carolina's State law case. The only regulating rules

would be State rules. And South Carolina says, that's

okay with us. They can take our law into the Federal

court and apply it there and -- but we don't want it back.

In other words, we want to force our cases to be litigated

into -- in the Federal court. And that doesn't make a

whole lot of sense.

MR. LINDEMANN: Well, it's not as much that

they're trying to force the Federal court to litigate the

case. Obviously, the plaintiff chose that forum to start

with. And Congress has deemed -- has provided for

supplemental jurisdiction. So obviously Congress has

provided a forum in Federal court for the litigation of

these State law claims. And so South Carolina has not

said, you can't give it back to us, but what South

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Carolina had said is that in the interim, if there's a

dismissal without prejudice of the State law claims in

another court, whether it be the Federal district court or

whether it be in a court of another State, if there's a

dismissal without prejudice under South Carolina law,

that's considered as if the suit had never been brought in

the first place.

QUESTION: In other words, you're saying it's

all right with us if the Federal court adjudicates this

purely State claim. The State isn't offended by that, but

it is offended by getting it back even though everyone had

notice in ample time within the -- the county had ample

notice because they received a Federal summons and

complaint. So there was no question of -- of repose

involved.

But there's one -- another aspect of this, it

seems to me, passing strange. Are you suggesting that the

removal statute would be vulnerable to a similar attack?

Because that's really -- if you're talking about State

court, this is wrenching a case out of the State court,

ousting the State court of jurisdiction, putting it into

the Federal court. I would think if you're right about

sending it back, then you'd certainly object to lifting it

out.

MR. LINDEMANN: I don't believe the interest

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here is that South Carolina has a problem with -- with the

Federal court deciding issues of State law, and I don't

think South Carolina has a problem with deciding those

issues itself. The problem South Carolina has in this

particular case is with Congress expanding upon State law

that actually set the boundaries as to when and how a

political subdivision can be sued.

QUESTION: What difference does it make whether

it's a political subdivision or not? Suppose South

Carolina law said, gas stations shall be immune from suit

except that you can sue them within two years, and then

the same situation occurs. Would -- would not the Federal

court be intruding upon South Carolina's decision of

immunity just as much?

MR. LINDEMANN:

be intruding upon --

South -- yes, the Congress would

QUESTION: So -- so --

MR. LINDEMANN: -- the ability of the State of

South Carolina to set a statute of limitations for private

defendants.

QUESTION: That's -- and that's all we're

talking about, to set a statute of limitations whether

it's for private defendants or whether it's for Richland

County which, as far as Federal law is concerned, is a

private defendant, or whether it's for gas stations.

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I mean, I -- you -- you try to make something

different of this case by saying what it involves in -- is

Richland County, but what we, the Federal courts, say is

Richland County is not the State of South Carolina. It is

not a State entity, and as far as we're concerned, it's a

gas station.

MR. LINDEMANN: But I would submit to the Court

two points in response to that. It goes beyond because

it's a governmental entity and you look at the application

of State law because again, this is a State law case

brought and adjudicated in a State court. And you look at

the State law which actually provides a greater defense

for a governmental entity than it does for a private

citizen.

To give the Court an illustration --

QUESTION: You would have no --

QUESTION: You give greater defenses for gas

stations. Would -- would that change the gas station case

simply because you give greater defenses to gas stations?

MR. LINDEMANN: No, it would not change the

case.

QUESTION: Of course not.

MR. LINDEMANN: My point is it -- it actually

makes a stronger case to show the intrusion on State

sovereignty where you have a political subdivision.

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And if I may illustrate. Prior to 1985, South

Carolina recognized absolute sovereign immunity for its

State entities as well as its political subdivisions. And

if you looked at -- the question that comes to mind is

whether Congress, prior to 1985, could have enacted a

statute that subjects Richland County, a political

subdivision in the State of South Carolina, to a claim for

negligence in the operation of its local detention center

where South Carolina law itself provides there is no such

claim because of sovereign immunity.

QUESTION: The answer is, of course, they could

if they had a -- if there is a basis in the Constitution

for the Federal Government to pass a law that changes

State law. They do it every day of the week.

And so usually what you ask is, is there a basis

here? Of course, there is. They say Article III.

Indeed, was there a problem Congress was trying

to cure? Indeed, there is. It was the mess that existed

before the statute.

Is there an infringement of what the State would

like to do? Of course, there is but the Constitution

gives the power to the Federal Government to do that.

Now -- now, what's -- that -- like, you know,

purely I'd say hornbook. So what -- what is the -- what

is the special thing about this infringement of the

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State's power to do what it would like to do here?

MR. LINDEMANN: I respectfully disagree with

you, Justice Breyer. If, prior to 1985, Congress wanted

to create a situation where Richland County would be

liable for the operation of its detention center, it would

have to do so in the context of a Federal cause of action

which obviously existed at that time under section 1983.

What I'm saying is --

QUESTION: So Congress in your opinion doesn't

have the power to -- to interfere with State law insofar

as it creates State laws of action? Congress couldn't

pass tort reform, for example.

MR. LINDEMANN: Well, I believe tort reform in

certain instances would be permissible. I -- I believe

that -- and certainly the -- the precedent set by this

Court supports this -- that Congress has the authority

through preemption and through its properly enacted

statutes to limit the liability in State court actions --

in State law actions, but cannot create liability where

none existed previously. And I'd submit to the Court that

I'm not aware of any single example where Congress has

stepped in and created a statute that creates a -- a State

law cause of action or expands upon a State law cause of

action to create liability where none existed.

QUESTION: Except the Soldiers' and Sailors'

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Relief Act, for example.

MR. LINDEMANN: Well, and the Soldiers' and

Sailors' Relief Act, if it is indeed constitutional, is

based upon a different weighing of the Federal interest

versus the State interest. You obviously in that case

have much greater Federal interest involved than the

simple convenience to litigants to have to be able to be

-- have the ability to file your Federal and State claims

in the same Federal action without concern that your State

action might ultimately be dismissed after the statute of

limitations ran.

Obviously the Soldiers' and Sailors' Act

involves First Amendment war powers. It involves issues

of national defense and deployment of armed services

around the country where they're not available to -- where

they don't have the immediate availability of access to

our court system. Those are much different rights, much

different Federal interests, and would create a much

different issue. And how this Court would ultimately

resolve that issue I cannot say, but it would certainly

make a much stronger case for allowing that than the

simple case that is -- or the Federal interests that are

at stake in this particular instance.

The --

QUESTION: If we went back to the old ways, is

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there any unconstitutionality in one of the things that

was done? And the Federal judge will say, yeah, this is

really State business, but I'm not going to subject the

plaintiff to a time bar. So, defendant, Richland County,

any defendant, would you agree that you will waive the

statute of limitations should I dismiss this case without

prejudice. The -- the -- the State -- the county

certainly could do that.

MR. LINDEMANN: That -- that happened frequently

prior to 1990, and I'm actually aware of -- personally of

instances even since 1990 where that's been the case --

QUESTION: And how about bringing --

MR. LINDEMANN: -- and that obviously is the

solution.

QUESTION:

action and says, I really want this 1983 claim to be the

front runner, but if I fail on that, I want to have these

garden variety State -- whatever it is -- assault cases.

So the plaintiff begins a State -- a case in State court

and the State tort claims, the Federal case, including the

1983 claim.

A plaintiff brings a protective

MR. LINDEMANN: That's right.

QUESTION: Then that would be perfectly all

right.

MR. LINDEMANN: That would be perfectly all

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right, and in fact --

QUESTION: And all that accomplishes is having

two cases instead of one, which is if -- if that can be

avoided, it's -- for the efficiency of the system, it's a

pretty good idea, isn't it?

MR. LINDEMANN: But realistically looking at the

way 1367(d) operates anyway is you often do have two

separate lawsuits such as what we have in this particular

instance.

QUESTION: But that's what 1367(d) was meant to

overcome I thought, having two lawsuits going on, just to

have the -- the State court sitting there and nothing

happening in the event that the Federal court should

dismiss the Federal claim and there's a live lawsuit to

pick up.

MR. LINDEMANN: There are many different

alternatives that courts dealt with this issue prior to

1990. And in fact, I'd submit that there's certainly no

authority to support any finding or any conclusion that

litigants' due process rights were violated before 1367(d)

was enacted.

QUESTION: No. It wasn't necessary to

litigants. It's just that your solution to the problem

permits the two parties who want to try their case in

Federal court to confer a jurisdiction on the Federal

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court that the district judge believes it doesn't have and

doesn't want.

MR. LINDEMANN: Well, and -- and that is true.

QUESTION: So from a point of view of protecting

the State, I guess Congress dived into this mess. I -- I

wrote an opinion. You might -- to recall it to mind, it

happened to involve a plagiarism. Did you read -- I had a

1st Circuit case. It involved plagiarism of an Icelandic

poet called Franjen Gendulik.

(Laughter.)

MR. LINDEMANN: I'm not aware of that --

QUESTION: And in that -- you're not aware of

that. Well, if you don't -- that doesn't call it to

mind --

QUESTION:

(Laughter.)

It was made into a movie, wasn't it?

QUESTION: But the poem was Suze Sine Razmut

Nogot.

In any case, the -- the point was at the end of

that it seemed like a terrible mess. There seemed like

five solutions. Each of them had something to be said for

it, and so Congress went in to legislate in order to deal

with this procedural mess.

Now -- now, why isn't that a legitimate interest

just as legitimate as the interest in protecting soldiers

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and sailors, the interest that underlies lots of other

Federal legislation?

MR. LINDEMANN: Well, I would submit to Your

Honor that that is certainly not a very substantial

Federal interest to the extent it is a Federal interest.

QUESTION: To deal with a problem of unfairness

to States, unfairness to litigants, try to have a uniform

rule?

MR. LINDEMANN: Well, I don't believe it -- it

creates unfairness necessary to litigants, and there are

obviously solutions around it -- and was dealt with by --

many courts dealt with this particular issue prior to

1990. And I would submit that when you balance that

Federal interest with the State interests that are

involved here and -- which is obviously what -- what's the

analysis under the Tenth Amendment, that the result should

be that the State interests involved to be able to control

State law and State law claims, to be able to control when

and how State -- States and their political subdivisions

are subject to suit under State law, that those interests

far outweigh the Federal interest. Obviously it is a

balancing problem.

QUESTION: Isn't -- isn't one of the questions

who should do the balancing? Should we do it or should

Congress do it?

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MR. LINDEMANN: Well --

QUESTION: Doesn't Congress normally make this

kind of policy decision?

MR. LINDEMANN: Well, I believe in this --

QUESTION: And the branch of the Federal

Government that makes this kind of policy decision.

MR. LINDEMANN: Well, there -- there's clearly

no -- no legislative history that suggests that Congress

made that particular balancing. In fact, there's nothing

in the legislative history --

QUESTION: No, but I assume the State of South

Carolina was represented in Congress at the time they made

that decision and could be -- could raise all these

objections in that forum.

MR. LINDEMANN:

Court that just as this Court ruled in the Raygor case

last term in the Tenth Amendment context, just like in the

Eleventh Amendment context --

Well, I would submit to the

QUESTION: The Eleventh Amendment was really

implicated there.

MR. LINDEMANN: -- you have to look at whether

or not there's a clear statement that Congress intended to

affect Federal-State relations such as it did.

QUESTION: No, but I think the clear statement

rule is limited to States, and of course, counties are not

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considered the same as States.

MR. LINDEMANN: Well, I would -- I would submit

to the Court that if -- if Your Honor is suggesting that

only comes into play in Eleventh Amendment cases, that --

that -- I would disagree with that because Gregory versus

Ashcroft was a Tenth Amendment case and this Court ruled

based upon the clear statement rule.

Now, whether or not a party has standing to

assert --

QUESTION: Was that -- was that a -- an

immunity --

QUESTION: That was State officials.

QUESTION: -- official -- an officer immunity

case?

MR. LINDEMANN: That was a case.

ADEA case, Your Honor, looking at the qualifications of

State judges in the State of Missouri.

It was a -- a

QUESTION: But the difference is that the State

is not amenable to suit in Federal court. The

municipality is just like any other corporation. So --

MR. LINDEMANN: I don't disagree with that.

That's why we are not pursuing this matter under the

Eleventh Amendment. However, a municipality has standing

to assert a challenge under the Tenth Amendment, and this

Court in the Printz case, Printz v. United States, was

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actually --

QUESTION: It's not a kind of jurisdictional

challenge. I mean, the State -- if the State were sued in

Federal court and there was a pending claim, the State

would say you -- we don't fit under 1367(a), and the State

not there at all. But here this claim is properly brought

in Federal court against the city. Is that right?

MR. LINDEMANN: That -- that's correct, Your

Honor.

QUESTION: So it seems to me there's a very

large difference in that respect.

MR. LINDEMANN: We -- we are certainly not

arguing that 1367(d) is unconstitutional as applied to --

I mean, (a) is unconstitutional as applied to Richland

County.

State law statute of limitations and the limited waiver of

sovereign immunity under State law is what, as applied in

this particular case, violates the Tenth Amendment.

What we're arguing is that the expansion of the

QUESTION: I can see in the abstract what your

argument is, but in the concrete, let's take the removal

case. So there's a case lodged in State court. It's

lifted up, put into Federal court, and then more than 2

years later, it gets remanded. Practically what's the

difference in terms of South Carolina and its concern with

stale claims between those two cases?

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MR. LINDEMANN: Well, Your Honor, obviously a

removal situation is substantially different in that

jurisdiction was first lodged in the State court, and as a

result, any type of waiver issue or any type of statute of

limitations issue would be resolved by the fact that there

was a initial filing of the State court claim in State

court.

QUESTION: But functionally I don't see any

significant difference if the concern is we don't want

stale claims. We don't want to adjudicate claims that

have been hanging around more than two years. In my case,

yes, you touched base in Federal -- in State court. What

you got was what you got in Federal court, that is, notice

that the plaintiff is suing arising out of this particular

episode.

State's -- the State is trying to protect its concern for

adjudicating stale claims. The claim is still stale when

it comes back from the Federal court.

I don't see practically any difference if the

MR. LINDEMANN: It's not so -- as Your Honor

pointed out earlier, it's not solely an issue of repose

because here because the respondent, the defendant in the

-- in the underlying case is a governmental entity, there

is a aspect of State sovereign immunity that comes into

play that doesn't come into play in -- in the other

instances. And so you have the added interest of

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preserving the right of the State in order to determine

whether it's going to waive its sovereign immunity, which

of course didn't happen until 1985, and when it does waive

sovereign immunity, the extent to which it's going to

waive it. And again, I'm referring to State law sovereign

immunity, not Federal constitutional immunity under the

Eleventh Amendment or otherwise. So what --

QUESTION: I understand that. I just don't

understand why you think we should -- we should care.

MR. LINDEMANN: Well --

QUESTION: If you're not talking about Federal

sovereign immunity of the State, why should we care if --

if the State chooses to create some other kind of

sovereign immunity that -- that isn't the kind that we're

concerned about?

MR. LINDEMANN: Because it goes, Your Honor, to

the heart of exactly what the -- the State sovereignty,

the interests of State sovereignty that's involved in this

case.

QUESTION: No, it doesn't. No, it doesn't. The

-- the essence of State sovereignty is everything covered

by Federal State sovereign immunity which is States and

agencies of States. Everything else is not central to

State sovereignty, whether -- whether they choose to make

Richland County a -- you know, give them some State

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sovereignty protection or -- or choose to make a gas

station that way.

I don't -- I just don't understand why you

expect this to impress us, that the State has gone beyond

Federal State sovereign immunity and created some new

element of State sovereign immunity. I mean, they're --

they're free to do that, but I don't see how it invokes

any new doctrine under either the Eleventh Amendment or

the Tenth Amendment or any other provision of Federal law.

MR. LINDEMANN: Well, I'm not submitting that it

creates any type of new doctrine, Your Honor. What I'm

suggesting is that it's an aspect of State sovereignty for

a State court -- I mean, for a State legislature to

determine what the law is in that State that is applicable

purely to State law claims litigated in a State court.

QUESTION: Okay. Why isn't the answer then

necessarily the same whether we have a private litigant or

whether we have a -- a political subdivision? They said

for the private litigants, two year statute of

limitations. Why isn't your answer exactly the same? The

State was exercising the State's -- the same sovereign

power in each case.

MR. LINDEMANN: Well, I believe it would also

apply to a private litigant, and I didn't try to convey to

the Court --

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QUESTION: Okay. I -- I hadn't understood that

was your position.

MR. LINDEMANN: What I'm trying to suggest to

the Court is because you have this added element of State

law sovereign immunity, which is created by a State

constitution, it makes it even a more compelling Tenth

Amendment --

QUESTION: But you don't -- you don't need it.

You don't need it. The private litigant doesn't have any

sovereign immunity rights under State law, but the private

litigant would be able to insist on the two-year statute

just the way the county is insisting on it here.

MR. LINDEMANN: I believe that would be the

case. Now, that's not the issue, obviously, before this

Court and that's not decided by the South Carolina Supreme

Court. The South Carolina Supreme Court decided this case

in a very limited fashion and found that 1367(d) as

applied to political subdivisions in South Carolina, given

the South Carolina Tort Claims Act and the history of

sovereign immunity -- State law sovereign immunity in that

State, that as a result, as applied to Richland County,

it's unconstitutional.

QUESTION: Suppose a judge should say -- the

Federal judge -- knowing South Carolina's position on this

question, I'll keep the case, which is now an entirely

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State case, and I know that in diversity cases I'm

supposed to apply the State statute of limitations. So if

the Federal judge keeps this case in deference to South

Carolina's position that it doesn't want it, it's too

late, and the Federal court in a diversity case must apply

the State statute of limitations, when -- when does that

limitation begin, when South Carolina said it would if the

case were reinstituted there?

MR. LINDEMANN: No, Your Honor. I would -- I

would submit that the statute of limitations started to --

or ran from obviously the date of loss through -- through

for the two-year period, and if the case was filed in

Federal court within that two-year period, the statute of

limitations, as well as the -- the argument that sovereign

immunity applies, would not be applicable to that case.

But what occurred in this case is there was a

dismissal without prejudice of the State law claims.

Under South Carolina law, a dismissal with prejudice is

treated as if the suit was never brought in the first

place. And as a result, when the case was refiled in the

State court, it was refiled beyond the two years, at which

point the statute of limitations had run and at which

point Richland County was also entitled to absolute

immunity under the South Carolina Tort Claims Act.

And I would again submit to the Court that the

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reason why we believe that this is a significant issue

under the Tenth Amendment for this case and why the

Eleventh Amendment jurisprudence of this Court does not

govern is -- is because of the importance of the State law

interest. And the key to this whole argument is the point

that this is not a Federal claim litigated in Federal

court. In fact, the cases that have been cited by the

petitioner in their briefs, the Burnett case, the Order of

Railroad Engineers case, all of those cases are

distinguishable because those are Federal causes of action

that are litigated in Federal court.

This is a State law claim that's litigated in

State court under purely State law, and we would submit

that the South Carolina General Assembly should decide

what is the applicable South Carolina law and that

Congress does not have the power under Article III and the

Necessary and Proper Clause to override that statement of

State law and to create liability where no liability

previously existed. And that is the key point.

Congress has the authority through a validly

enacted statute and through use of the Supremacy Clause to

limit liability in State actions by providing for

preemption, ERISA being an example, but there is no

example that I'm aware of where Congress has created

liability where none previously existed.

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QUESTION: Thank you, Mr. Lindemann.

MR. LINDEMANN: Thank you, Your Honor.

QUESTION: Mr. Peck, you have 4 minutes

remaining.

MR. PECK: If the Court has no further

questions, I would ask that the Supreme Court of South

Carolina be reversed and would waive rebuttal.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Peck.

The case is submitted.

(Whereupon, at 12:15 p.m., the case in the

above-entitled matter was submitted.)

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